Use of Cell Phones in Domestic Cases

For attorney’s involved in domestic relations, the question always comes up regarding the use of cell phone records in a domestic case. Recently Stephanie Beougher reported on July 15, 2014 in the Ohio Supreme Court News about the US Supreme Court case of Riley v California.

The U.S. Supreme Court ruled last month that police need a warrant to search a suspect’s cell phone. While the 9-0 vote in Riley v. California put the nation’s law enforcement on notice, an Ohio Supreme Court ruling nearly five years ago already set that standard in the Buckeye State.

The Ohio Supreme Court ruled on Dec. 15, 2009, in State v. Smith that the Fourth Amendment prohibition against unreasonable searches and seizures requires police to obtain a warrant before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest when the search is not necessary to protect the safety of law enforcement officers and there are no exigent circumstances.

Justice Judith Ann Lanzinger wrote the majority opinion in the 4-3 Ohio decision.

“In our case, it involved a cell phone that you wouldn’t call a smartphone now,” Justice Lanzinger said in a recent interview. “Four and a half years ago we recognized that cell phones were very different from laptop computers and containers, and we said this is the type of issue the Fourth Amendment was designed to protect – the interest that people have in the private things of their lives.”

In the case from Greene County, Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. During the arrest, police took Smith’s cell phone and later searched the phone’s contents without a warrant or his consent.

Smith claimed his constitutional right against unreasonable search and seizure was violated, but his attempts to have the evidence suppressed were denied by both the trial and appeals courts. The Ohio Supreme Court ruling found a warrantless search is prohibited when there are no immediate safety concerns. The U.S. Supreme Court made the same decision in its ruling. Justice Lanzinger said even if there had been a different outcome in the national case, Ohio would still require search warrants.

“If the Supreme Court had ruled the other way and said the police can do this without a warrant, our law still would have prevailed because the state can give more protections than the federal courts give,” Justice Lanzinger said.

At the time of the Ohio decision, neither the U.S. Supreme Court nor any other state supreme court had ruled on the Fourth Amendment implications of a cell phone search. In Riley v. California, the California state court ruled in 2011 that a warrant was not needed for a defendant’s phone taken by police officers during a traffic stop. David Riley was later charged with a gang-related shooting due in part to photographs and videos that were found on his phone.